How the NLRB’s Decisions in Cases Involving Social Media Are Narrowing the Definition of Concerted Activity: Whether Employees ‘Like’ It or Not

Abstract

Social media has infiltrated every aspect of modern life, including the workplace. As a result, the social media revolution has significantly impacted workplace relationships and the countervailing rights of employers and employees under labor and employment law. Social media has lowered the costs and obstacles for employees to communicate with one another and with the general public. This makes a positive contribution to labor relations and the economy because social media provides an efficient means for intra- and inter-firm employees to engage in concerted activity that is protected under the National Labor Relations Act. Simultaneously, social media can negatively impact firms by providing disgruntled employees instant access to vast members of the general public and affords such employees the ability to disseminate messages that have the potential to cause catastrophic harm to a firm’s reputation which may result in damages to a firm’s goodwill, net worth, and profitability. In extreme circumstances, this results in layoffs that affect innocent employees. This Article analyzes how the courts and the National Labor Relations Board are grappling with these contemporary issues: When is it permissible for an employer to sanction or dismiss a worker simply because it disapproves of an employee’s social media content (despite the fact it does not directly implicate the employer’s business)? An analysis of the seminal NLRB cases and rulings on social media activity discloses a pattern of a narrowing interpretation of concerted activity.